Scott v. Garrard County Fiscal Court et al
Filing
58
MEMORANDUM OPINION & ORDER: (1) Plt's equal protection claim DISMISSED W/OUT PREJUDICE; (2) Dfts shall file REPLY to Plt's response to Court's Show Cause Order w/in 14 days. Reply limited to sole issue of continued viability of Plt's 4th Amendment claim re seizure of Lanham Lane. Signed by Judge Joseph M. Hood on 2/6/2012.(STB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DONNA SCOTT,
Plaintiff,
v.
GARRARD COUNTY FISCAL COURT,
et al.,
Defendants.
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)Civil Action No. 5:08-CV-273-JMH
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) MEMORANDUM OPINION AND ORDER
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On January 20, 2012, the Court entered an Order, dismissing
Plaintiff’s takings and due process claims and ordering Plaintiff
to show cause why her seizure and equal protection claims should
not be dismissed without prejudice, as well. [DE 56]. On February
3, 2012, Plaintiff filed her response to the Court’s Order.
57].
[DE
The Court notes that Plaintiff devotes much of her response
to issues that were resolved by the Court’s January Order.
Nevertheless, the Court has considered Plaintiff’s response and now
addresses her two remaining claims.
The Court first considers Plaintiff’s equal protection claim.
As
already
stated
in
the
January,
2012
Show
Cause
Order,
Plaintiff’s complaint does not contain sufficient factual averments
to state a “class of one” equal protection claim.
14].
[DE 56 at p.
Plaintiff now argues that, in her May 2011 filing with this
Court, she “pointed to affidavits and other evidence already in the
record,” sufficient to state an equal protection claim.
Plaintiff’s
filings
were
construed
as
an
amended
Even if
complaint,
however, Plaintiff has failed to identify sufficient facts upon
which an equal protection claim can lie.
Specifically, she has
failed to aver that she was similarly situated, in all material
respects, to others from whom she was treated differently.
See
Braun v. Ann Arbor Charter, Twp., 519 F.3d 564, 575 (6th Cir.
2008).
As a result, Plaintiff’s equal protection claim will be
dismissed.
Plaintiff argues that her Fourth Amendment claims should be
allowed
to
proceed
because
they
are
distinct
and
separately
cognizable from her previously dismissed takings claims. While the
Court is not persuaded of the validity of Plaintiff’s suggested
approach, it is cognizant that other courts have concluded that a
Fourth Amendment seizure claim may lie even where, because of a
lack of ripeness, a Fifth Amendment takings claim cannot.
See
Presley v. City of Charlottesville, 464 F.3d 480 (4th Cir. 2006);
Severance v. Patterson, 566 F.3d 490 (5th Cir. 2009).
The Court
finds
making
that
further
briefing
would
assist
it
in
a
determination with respect to this issue.
Accordingly, IT IS ORDERED:
1) Plaintiff’s equal protection claim is hereby DISMISSED
WITHOUT PREJUDICE; and
2) Defendants shall file with the Court, within fourteen (14)
2
days, a REPLY to Plaintiff’s Response to the Court’s Show Cause
Order, [DE 57].
Defendants’ reply shall be limited to the sole
issue of the continued viability of Plaintiff’s Fourth Amendment
claim regarding the seizure of Lanham Lane.
This the 6th day of February, 2012.
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